UK Position on the Free Movement derivative rights of Non EEA parents of EU citizen minor children

In Ireland, the legal position of Non EEA parents of EU citizens and their right to reside/work/access welfare is still quite unclear following the Court of Justice judgments in Ibrahim, Teixeira and Chen. No guidelines have been published, nor statutory amendments made to the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended).   In the UK however the position has been recently clarified, and it is of helpful assistance for us to review these changes in the UK domestic law.

In the UK, the directive is transposed into the Immigration (European Economic Area) Regulations 2006^, as amended by SI 2009/1117  and amended by SI 2011/1247.Under Regulation 15A, a person who is not entitled to reside in the UK as a result of any other provision of the but who, nevertheless, satisfies the criteria in the sub-paragraph of Article 15A of the Amendment Regulation is entitled to a derivative right to reside in the UK for as long as he/she satisfies the relevant criteria.

CHEN CASES

Following the Chen case the UK Border Agency published guidelines for the treatment of the primary carer of an EEA national child who is exercising free movement rights in the UK, and the dependent of such a primary carer.  In Chen, it was held that by virtue of the terms of Directive 2004/38/EC (“the Directive”) a child will have an right of residence in a member state where that child:

(a) Is an EEA national,

(b) Holds sufficient resources to prevent them (and their primary carer) becoming a burden on the social assistance system of the host member state, and

(c) Holds comprehensive sickness insurance.

The guidelines also direct that such a child is entitled to be accompanied by his or her primary carer, and therefore that the primary carer of such a child will have a right of residence in the host member state until the child’s eighteenth birthday where to refuse such a right would prevent the child from continuing to reside in the UK. Dependents of primary careers who have a derivative right of residence on this basis also derive a right of residence in the UK where requiring those dependents to leave the UK would have the effect of preventing the primary carer from residing in the UK.  This right of residence is not a Free Movement right but is a „derivative right‟. This means that the recognition of this right by the UK is not equal to rights under the Directive

Primary carers with a right to reside on the Chen  basis are, since 16th July 2012, able to work in the United Kingdom regardless of whether or not documentation has been issued to them by UKBA in that capacity.

In order to establish a derivative right to reside the primary carer must also show that the child upon whom they are claiming a derivative right would be unable to continue to reside in the UK should the primary carer be forced to leave. It is considered that any child under the age of 18 would normally require the presence and care of the primary carer (where no other carer is available) in order to continue to reside in the UK.

IBRAHIM AND TEIXEIRA CASES

The UK Border agency also published guidelines implementing the Judgments in Ibrahim and Teixeira.

In the cases of Ibrahim and Teixeira, the ECJ ruled that, by virtue of Article 10 of Regulation 492/2011 (i) the children of an EU citizen who works or has worked in the host Member State (who are in education in that State), and (ii) the primary carer of those children, can claim a right of residence in that State. UKBA has also decided that dependent children of such primary carers should also qualify for a right of residence where failure to give such a right would have the effect of preventing that primary carer from residing in the UK.

Children of EEA nationals may qualify for a right of residence under regulation 15A (3) where they meet the conditions set out in that regulation. The conditions for a right to reside under 15A (3) are that the child:

(a) Is the child of an EEA national (“the EEA national parent”)

(b) resided in the UK at a time when the EEA national parent was residing in the UK as a worker, and

(c) is in education in the UK and was in education there at a time when the EEA national parent was in the UK.

A child of an EEA national who has worked in the UK, and who was in the UK while that child was in education in the UK, will therefore be entitled to a right of residence to allow them to complete their education should the EEA national either leave the UK, or no longer have a right to reside under the Regulations.

It is not necessary for the EEA national parent to have been a worker at a time when the child was in education in order for the child to benefit from this provision. The child must only have been residing in the UK at a time when the EEA national was a worker, and must have been in education at a time when the EEA national was present in the UK.

 A person who meets the definition of primary carer as set out in regulation 15A(7) may apply for a derivative residence card confirming a right of residence under regulation 15A(4) where they meet the conditions set out in that regulation. The conditions for a right to reside under 15A(4) are that:

a) The applicant is the primary carer of a person who meets the criteria set out in category (A) above; and

b) The child would be unable to continue to be educated in the UK if the primary carer were required to leave.

Although UK legislation is silent about whether these categories of individuals can work, it is widely recognized now that they can, as there are no restrictions provided for in the Regulations on those who fall within them from working. Previous legislation covering Chen parents (paragraph 257C of the Immigration Rules) prohibited them from working.

However the UK Border Guidelines stipulate as follows;

“A person who has a derivative right of residence under new regulation 15A is not subject to any restriction on taking employment in the UK. Possession of a derivative residence card evidences the fact that the holder had a derivative right at the time at which the card was issued, but only confers a right to work for as long as the holder continues to enjoy the underlying right to reside.”

Brophy Solicitors

12.12.12 

Social Welfare Benefits Refused on basis of Delay in Seeking Judicial Review and not holding a Work Permit in the State

Case Study: Solovastru & Anor v The Minister for Social Protection [2011] IEHC 532

The first named applicant sought a judicial review of a number of decisions in relation to his application for jobseekers allowance, welfare allowance and rent supplement.

The second named applicant sought to judicially review the decision in relation to her application for child benefit.

The first named applicant, a Romanian national, arrived in the state in September 2004. He first worked as a carpenter, then for a company and was subsequently self-employed from 2007 to 2008 as a metal fixer. He stated that he was not aware that a work permit was required to work in the state. The second named applicant came into the state in February 2007 with her three children, and a further three children were born to her in the state.

The first named applicant was refused jobseekers allowance in 2009, and his appeal was refused in 2010. He was also advised that he did not meet the requirements to receive welfare allowance and rent supplement. The second named defendant was refused child benefit in April 2009.

The respondents contended that the applications for leave to apply for judicial review were not made promptly and consequently the applicants were not entitled to bring their applications. The second named applicant failed to explain why she did not make an application for judicial review promptly. Due to this delay the High Court was satisfied that she was not entitled to seek leave to apply for judicial review in respect of the decision to disallow her the provision of child benefit

The respondent contended that the first named applicant failed to act promptly in bringing an application for certiorari. The High Court held that the applications for relief by way of certiorari could be maintained as there was correspondence taking place between the solicitors on behalf of the applicant and so he was trying to deal with the matter and acting promptly.

The first named applicant was permitted to reside in the jurisdiction as a self-employed person, but since he is no longer self-employed he is no longer entitled to a right of residence. The High Court acknowledged that under EU regulations the right of EU citizens to reside in another member is restricted. The first named applicant was unlawfully present in the country prior to the accession of Romania to the European Union. He was subsequently engaged in paid employment, but by virtue of the transitional measures contained in Annex 7 in relation to Romanian nationals, he was still bound by existing national rules and obliged to have a work permit to enter into employment.

This means that he was not lawfully employed in the jurisdiction and did not have a right of residence and so is not entitled to seek jobseekers allowance without a work permit.

The issue in relation to supplementary welfare allowance and rent supplement was dependent on the outcome of the situation in relation to jobseekers allowance. Therefore the court concluded that the first named applicant was not entitled to those allowances either and there is no basis for challenging the decisions made by the respondent in respect of those allowances.

Brophy Solicitors

22.05.12

     

PERMANENT RESIDENCE – THE ZIOLKOWSKI/SZEJA CASES

Permanent residence is to be granted to EU citizens after five years of continuous legal residence in another member state. The status of permanent residence ensures that citizens no longer have to comply with conditions that must be met by those without that permanent residence status – such as the on going requirement to be economically active or sufficient resources with adequate medical insurance. Furthermore, permanent residence gives Union citizens increased protection from expulsion.

We are working on many applications for permanent residence for our clients, and we watch the developing case law from the Court of Justice with much interest. From time to time, we like to bring some of the more helpful case law to our reader’s attention. One such judgement was delivered by the Grand Chamber of the Court of Justice the 21^st of December 2011 - in the cases of Ziolkowski and Szeja (Joined Cases C‑424/10 and C‑425/10), both cases referred from Land Berlin.

The Court of Justice was asked to consider the cases of two Polish nationals who had been refused applications for Permanent Residence pursuant to the Citizenship Directive (2004/38/EC), and were further refused on going permission to remain on the basis that the applicants were not economically active/self sufficient with medical insurance.

The first question referred to the Court of Justice was as follows;

Whether Article 16(1) of Directive 2004/38 must be interpreted as meaning that a Union citizen who has been resident in the territory of the host Member State for more than five years on the sole basis of the national law of that Member State must be regarded as having acquired the right of permanent residence under that provision if, during that period of residence, he did not fulfil the conditions laid down in Article 7(1) of the directive.

Following an analysis of other provisions in the Directive, the Court of Justice summarized the three stages of EU Law

39        First, for periods of residence of up to three months, Article 6 of Directive 2004/38 limits the conditions and formalities of the right of residence to the requirement to hold a valid identity card or passport and, under Article 14(1) of the directive, that right is retained as long as the Union citizen and his family members do not become an unreasonable burden on the social assistance system of the host Member State.

40      Second, for periods of residence of longer than three months, the right of residence is subject to the conditions set out in Article 7(1) of Directive 2004/38 and, under Article 14(2), that right is retained only if the Union citizen and his family members satisfy those conditions. It is apparent from recital 10 in the preamble to the directive in particular that those conditions are intended, inter alia, to prevent such persons becoming an unreasonable burden on the social assistance system of the host Member State.

41      Third, it is apparent from Article 16(1) of Directive 2004/38 that Union citizens acquire the right of permanent residence after residing legally for a continuous period of five years in the host Member State and that that right is not subject to the conditions referred to in the preceding paragraph. As stated in recital 18 in the preamble to the directive, once obtained, the right of permanent residence should not be subject to any further conditions, with the aim of it being a genuine vehicle for integration into the society of that State.

At paragraph 46, the Court concluded that legal residence after the first three month period requires residence in compliance with the conditions contained in the Directive, and particularly Article 7 (1) of the Directive, that is either as a worker/self employed person/student/financially self sufficient person (with health insurance). On the fulfilment of five years in conformity with these conditions, the union citizen acquires the right of permanent residence, and should be subject to no further conditions.

However, the Court emphasized that a Union citizen who has resided for five years in the host Member State and during that time was not an economically active person, cannot presume eligibility for permanent residence.

In the cases referred to the Court, it was accepted that the applicants had never satisfied the conditions laid down in Article 7(1) of Directive 2004/38, and therefore were not entitled to permanent residence.

In answering the second question the Court found as follows;

“periods of residence completed by a national of a non‑Member State in the territory of a Member State before the accession of the non‑Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive.”

Brophy Solicitors

12.04.12

LAUNCH OF EU IMMIGRATION PORTAL

We learnt last week of the launch by the European Commission of the Immigration Portal.

The portal serves as a valuable new resource on immigration rules and law in the European Union specifically for non-EU citizens. It is the outcome of three years development by the European Commission in conjunction with the Migration Policy Group. Information on migration within the EU for EU citizens continues to be available here.

The laws and policies for each of the 27 Member States are detailed on the website, together with links to relevant authorities and support organisations. The Irish section provides a breakdown of the various laws and policies as they apply to family members of non-EU citizens, non-EU workers, students and researchers.

You may also be interested in our new website that will be available soon. This will provide expanded information on immigration laws and policies in Ireland that we hope you will find useful!

Brophy Solicitors

25.11.11